The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1887-04-05
THE TELEPHONE LITIGATION.
Judge Colts Reason for Denying an Impor-
tant Motion Made by the Defendant.

Boston. April 4.-Judge Colt, of the United
States Circuit Court. sent down an opinion in
the case of the United States vs.. the American
Bell Telephone Company, to test the validity OF
the Bell patent, denying the motion of the de-
PENDANT for leave to demur to the bill, and also
to plead matters in defense. The court in its
opinion says: 'sThe defendant moves for leave
to file demurrer to the whole bill, and at the
same time several pleas. Equity rule No. 80
provides that the defendant may at any time
before the bill is taken or confessed, or after
ward with the leave of the court, demur to
part, plead part. and answer 70 the residue"
The court then reviews the case cited in sup
port of the motion by the defendant, and Says
~"But all these defenses must clearly refer to
separate and datinct parts of the bill, for the
defendant cannot plead to that part of the bill
to which he has already demurred; neither can
he plead to that part of the bill to which he has
either demurred or pleaded, the de-
murrer demanding the judgment of the
court whether he shall make any answer
and the plea whether he shall make any
other answer than what is contained in the
plea Assuming the power of the court to grant
the motion now asked for upon which am not
entirely free from doubt l am clear it should
not be exercised unless for good and sufficient
reasons. and to prevent injustice. The defend
ant asks leave to file demurrer to the whole
bill. raising tne question of the mower OF the gov
eminent to maintain this bill, and also to test
the equities of the bill. These two subjects may
properly be raised by demurrer, and In the ordi-
nary course of procedure in equity the demurrer
would be first filed aud heard. The demurrer
would determine whether the bill is without
authority or not. The defendant also asks leave,
at the time. plead or to file several pleas
f0r "a ipUr so caiA hat +boh
refers to litigation previously had with reference
to the scope and validity of the patents in
controversy, but that it does Lot state the
result of such litigation the decisions therein,
or that the questions of fact questions of law
that oughtto be raised by this bill have been ar
gued before the Supreme Court in suits for in
fringements of these patents, and is now held
under Amusement by that court, and that. there
fore, this defendants proper course is to plead
the same. For this reason it asks leave of the
court to plead any and all determinations re-
lating to or affecting the validity scope of said
patents in addition to demurring. The questions
it desires to raise by sueL plea are, it is cai med
closely akin to those which would be raised by
demurrer. and much time, expense ana labor
would be saved by presenting them at the same
time"
| for urging that the motion be granted are then
| stated the same having been already published.
| The court then adds "A proper plea is defense
such as reduces the cause, or some part of it, to
| the snit, to part Of it. to which the plea
| applies, and so far as this plea proposes
to set up prior litigation respecting these pat
| ents, no bar or estoppel is shown such as would
l. constitute good plea, because it does not ap-
| pear that the parties the same or the subject
| matter the same. 1t follows that the fact re-
latIng to the prior litigation reported in this mo-
| ton and the considerations of the saving of
| time, labor and expense. while they might be
urged, as suggested by the plaintiff. as ground
for continuance of the case. afford, in my opin-
| ION. sufficient justification for granting this
motv4. Nor do think the failure of the bill to
state the contents of the written cemmunica-
| tons as to the rules of the Patent Office. re-
ferred to in the sHll. sufficient reason for allow
ing defendant to plead and at the same time
demur to the whole bill, such course being
contrary 20 weil-established rules of equity
| pleading In eanse of this magnitude it seems
to me that the ends of justice are more likely to
be reached by following the regular and orderly
procedure of esarts of equity, and that the
court should hesitate. unless from grave consid-
erations, to depart therefrom. The motion is
| deuied